litigant not necessary in the United States, the foreign court must be deemed an inadequate forum . . . ." Nai-Chao v. Boeing Co., 555 F. Supp. 9, 16 (N.D. Cal. 1982) (citing, inter alia, Dobson v. Amoco (U.K.) Exploration Co., No. 78-C-2203 (N.D. Ill. Mar. 21, 1979), mem. op. at 5 ("'Plaintiffs also argue that they should be allowed to escape the English practice of charging attorneys fees and costs to the losing party . . . . We can see no reason why this action, which has every connection with England and none with the United States, should be brought here simply to except it from rules which ordinarily govern English lawsuits.'")). Similarly dismissing and remitting the relevant parts of the action to England, another district court has noted that "the potential for taxation of attorney's fees against the losing party is a two-way street: though a risk to a plaintiff who loses, it also provides a means for successful plaintiffs to recoup their attorney's fees." In re Silicone Breast Implants Prods. Liab. Litig., 887 F. Supp. 1469, 1476 (N.D. Ala. 1995).
The conclusion that England's longstanding rule regarding the imposed payment of legal costs renders England an inadequate alternative forum is particularly unconvincing on the facts here presented. The Kilverts receive a steady annual income stream and possess an automobile, two liquid bank accounts, and a house whose present value comfortably exceeds the outstanding balance of the single mortgage to which it is subject. We conclude that the risk of having to assume defendant's legal expenses does not here constitute an effective obstacle to the Kilverts' initiating suit in England.
A recent decision of this court provides an illuminating precedent. See Murray v. British Broadcasting Corp., 906 F. Supp. 858, 1995 U.S. Dist. LEXIS 4229, 1995 WL 146250 (S.D.N.Y. 1995) (involving similar issues to those before us here, specifically the economic unsuitability of England as an alternative forum). Although addressing the issue in the context of the then-unavailability in England of contingent fees, Judge Stanton articulated much of relevance in the attorney-fee context as well. In Murray the court dismissed the action, in the face of claims by the plaintiff of financial hardship were litigation to be conducted in England. The court found dispositive the fact that the plaintiff owned a successful business, an automobile, and an apartment valued at pounds sterling 110,000, subject to a mortgage of pounds sterling 100,855, and reported a before-tax annual income for the three preceding years of pounds sterling 46,066, 57,515, and 45,000. Murray's estimated legal fees, for which at that time there was no conditional-fee system available, totalled pounds sterling 100,000-150,000.
Carefully examining cases wherein courts refused dismissal on the ground of undue financial burden, Judge Stanton found that "when a court denies a forum non conveniens motion because the plaintiff can not afford to litigate in the alternative forum, the plaintiff generally has a much lower income and fewer assets than Murray." Id. at *6. In particular, the court cited cases whose plaintiffs had sizable medical bills, short-term health insurance, and assets of less than $ 50 or had no income stream, no possibility of future income, and were wholly dependent on others for financial support and lodging. Id. (citing respectively McKrell v. Penta Hotels, 703 F. Supp. 13 (S.D.N.Y. 1989) and Fiorenza v. United States Steel Int'l, 311 F. Supp. 117 (S.D.N.Y. 1969).
By contrast, the Kilverts have not demonstrated similarly extreme and dire financial hardship. The Kilverts seem at least as financially secure as Murray; in particular, the Kilverts' house, whose equity value totals pounds sterling 75,000, represents an asset of significant worth. Thus, we find that, as in Murray, "the information [the Kilverts] have provided suggests that although [they] do not have liquid assets sufficient to cover the expenses [they] expect to incur litigating in England, [they are] not of such limited means [as to be prevented] from pursuing [their] claim . . . " in England. Id.
The Court therefore concludes that plaintiffs have not made a sufficient showing of financial hardship to warrant a determination that England is an inadequate alternative forum for this action.
Nor have the Kilverts shown to the Court's satisfaction that dismissal is proper only upon defendant's waiving all right to legal costs were Tambrands to prevail in England. See, e.g., Abouchalache v. Hilton Int'l Co., 464 F. Supp. 94, 99 (S.D.N.Y. 1978), aff'd sub nom. Collins v. Hilton Int'l Co., 628 F.2d 1344 (2d Cir. 1980) (dismissal conditioned upon defendants' waiving any claims for costs and legal fees should they prevail in their English litigation).
Given (1) the strong nexus to England; (2) defendant's inability to implead Tambrands Limited; (3) defendant's willingness to subject itself to jurisdiction in England, to waive the statute of limitations, to provide access to sources of proof within its control, and to make its witnesses available to plaintiffs in England and at defendant's expense; and (4) the absence of compelling countervailing reasons for keeping the action in the United States, the Court concludes that England is a more convenient and sufficiently adequate forum for this litigation.
The Court thereby dismisses this action on the ground of forum non conveniens, subject to the conditions accepted by Tambrands: (1) that Tambrands will subject itself to jurisdiction in England, (2) that Tambrands will waive the statute of limitations, (3) that Tambrands will provide access to sources of proof within its control, and (4) that Tambrands will make witnesses in its employ available in England and at its cost.
Dated: December 8, 1995
New York, New York
Leonard B. Sand